I have considerable sympathy for Janice Stein’s lament about gender and equality in religion. But I find little merit in Stein’s argument that the Charter of Rights provides a solution. There is an important balance to be struck between the two halves of the liberal equation: liberty and equality. Pushing hard on the latter, as Stein does in her article, threatens to undermine the former.
While the Charter is designed to enhance personal freedom, it is also corrosive of freedom if applied everywhere. Among other things, it eliminates distinctions between persons and prevents them from associating with each other in exclusionary ways. This is appropriate when applied to governmental entities; governments must not engage in differential treatment or fashion discriminatory policies based on gender, race, religion, national origin, sexual orientation, etc. However, private organizations are a different matter; not that private sector discrimination is something to be fostered, but it should be examined through a different lens.
Religions are biased by their very nature. Religious institutions are, for good reason, even exempted from provincial human rights codes, which otherwise apply to private sector employers, landlords, etc. While Stein is worried about gender equality, there is the question of religious discrimination. Religious bodies typically exclude other religions. The Catholic church near my house insists on giving communion and won’t give my son a bar mitzvah. They keep sending me to the synagogue down the street, as if they were advocates of the notorious “separate but equal” doctrine that Stein makes much of in her article. The point is that the Charter neutralizes social differences in a way that is appropriate to the public sector only. Its application to religious institutions would effectively end religion, or would require government to create a faith enforcement branch, turning the Charter from a liberal document into a highly coercive one.
Stein’s link to the Charter is the charitable receipt and the indirect subsidy thereby granted to religious organizations. Government funds can turn a non-state actor into a body subject to Charter obligations, but it depends on whether public service is implicated. Sometimes even a private business becomes subject to constitutional restrictions because it receives funding to perform a public task—e.g., a mining corporation providing municipality-like services in a northern “company town.” On the other hand, my research grant from the Social Sciences and Humanities Research Council to fund my summer student assistant and defray the cost of books does not make me a government official or give my writing any authority beyond its power of persuasion.
Houses of worship get tax breaks, as Stein points out, but so do farmers, Canadian-made feature films and numerous other enterprises. With population growth schemes and the federal government’s new daycare allowance, even baby making may be a funded activity. That does not turn parents into government agencies and households into arenas in which freedom of speech applies.
Stein is right in saying that the Charter articulates the values of contemporary Canada. But it does so only when we remain cognizant of where the Charter ends, lest the rights and freedoms that it enshrines turn against the liberties of us all.
Ed Morgan
Toronto, Ontario
